Published July 1, 2014
These are selected posts by EPPC President Ed Whelan analyzing the Supreme Court’s ruling in the Hobby Lobby case. They first appeared on National Review Online’s Bench Memos on June 30 and July 1, 2014.
June 30, 2014, 11:41 a.m.
Here’s a quick summary of (and a few comments on) Justice Alito’s majority opinion in Hobby Lobby:
1. For-profit corporations are persons protected under RFRA. (Pp. 16-20.)
2. Closely held for-profit corporations are capable of engaging in an exercise of religion protected by RFRA. (It “seems unlikely” that publicly traded corporations would “often” assert RFRA claims, but no need to decide whether they can.) (Pp. 20-31.)
3. The HHS mandate substantially burdens the exercise of religion by the Hahns, the Greens, and their companies. (Pp. 31-38.)
a. Severe economic consequences.
b. We need not reach novel claim that companies would be better off forcing their employees into the exchanges. But if we did reach the claim, we wouldn’t find it persuasive. (Pp. 32-38.)
4. We need not decide whether the HHS mandate is in furtherance of a compelling governmental interest. Even if we assume it is, the mandate flunks the least-restrictive-means test. (Pp. 38-40.)
5. The mandate flunks the least-restrictive-means test. (Pp. 39-45.)
The least-restrictive-means test is “exceptionally demanding.” (P. 39.)
The most straightforward way for the government to achieve its desired goal would be to pay the cost of the objected-to contraceptives itself. We see nothing in RFRA that supports the argument that the government can’t be required to create entirely new programs in order to comply with RFRA. (Pp. 41-43.)
We need not rely on the option of a new government-funded program because HHS has already demonstrated that it has at its disposal an approach that is less restrictive of religious liberty—the accommodation for religious nonprofits. “We do not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” (Emphasis added.)
Commentary: There will be much parsing of this passage. I think that some mandate opponents, worried that a defeat is lying in this victory, will misread this passage. What I think that Alito is saying is that the objection to the accommodation is not to “providing insurance coverage” per se but rather to providing a self-certification that has the consequences of making the certifier morally complicit in the provision of objected-to drugs and devices.* This issue is being, and will continue to be litigated, in the pending suits against the accommodation.
Indeed, it bears highlighting that the majority, in a footnote (footnote 9 on page 10) has offered an expansive reading of the relief that it afforded the Little Sisters of the Poor in the Little Sisters’ challenge to the accommodation: That order means that all “eligible organizations” must “be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators.” Together with the Court’s sound understanding of substantial burden, that proposition
ought to provide gives high hopes for a victory to the challengers to the accommodation.
(In his brief concurrence, Justice Kennedy cites the passage above from the majority opinion in stating that the accommodation “does not impinge on the plaintiffs’ religious beliefs.” In context (given that Kennedy joins Alito’s opinion and does nothing more than cite the passage above), I think that it’s clear that he is saying nothing more than Alito is saying: only that the religious beliefs that plaintiffs have set forth in this case against providing insurance coverage wouldn’t be impinged by the accommodation.)
6. This ruling will not lead to the parade of horribles that the dissent trots out. (Pp. 45-49.)
* Justice Ginsburg, in her wildly overwrought dissent, offers a compatible reading on this narrow point, as she asserts that the government has shown that there is no less restrictive means that would “satisfy the challengers’ religious objections toproviding insurance coverage for certain contraceptives.” (Dissent at 27-28.)
June 30, 2014
Justice Ginsburg begins her overwrought dissent by labeling Justice Alito’s majority opinion “a decision of startling breadth.” But it’s Ginsburg’s own position that more aptly deserves that criticism.
As Matt Franck has pointed out, it’s striking that Justice Breyer and Justice Kagan refuse to join the seven full pages of Ginsburg’s dissent (pp. 13-20) in which she (joined only by Justice Sotomayor) takes the position that a for-profit corporation is never a person capable of an exercise of religion within the meaning of RFRA. I think that her position is clearly wrong, for the reasons that Alito elaborates. Consider also the remarkable consequences of her position, which the Ethics and Public Policy Center (the think tank I run) spelled out in our amicus brief. I here substitute “Justice Ginsburg” for “the Government” in several places in this excerpt from our brief:
[I]f there is any reading of RFRA and the Free Exercise Clause that raises disturbing implications, it is Justice Ginsburg’s. According to Justice Ginsburg, the Government can make any market for goods or services a Free-Exercise-Free Zone simply by the artifice of placing whatever obligations it wants on corporateentities rather than on natural persons.
In Justice Ginsburg’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an independent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor.
On the remaining points in Ginsburg’s dissent, I’ll happily leave it to the interested reader to compare Alito’s careful analysis with Ginsburg’s implausible contentions. (I’ve covered these points amply before.)
June 30, 2014
An Eleventh Circuit panel, evidently having read footnote 9 of today’s Hobby Lobby ruling, has granted the Eternal Word Television Network an injunction, pending appeal, against the accommodation for religious nonprofits.
Better yet, one member of the panel, Judge William Pryor, has written a powerful opinion (pages 3-29 of the order) explaining why EWTN is likely to succeed on the merits of its appeal. Judge Pryor “part[s] ways with the Sixth and Seventh Circuits … because the decisions of those courts are wholly unpersuasive.” Among other things, he explains that the Obama administration requires that the objecting religious nonprofit make the self-certification and deliver it to the third-party administrator of its health-insurance plan because federal rules treat the self-certification “as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits” and because “without the form, the administrator has no legal authority to step into the shoes of the [employer] and provide contraceptive coverage to the employees.”
Citing footnote 9 of Hobby Lobby, Judge Pryor further explains that the accommodation flunks RFRA’s least-restrictive-means test because (on thearguendo assumption that the HHS mandate serves a compelling governmental interest) the government could require an objecting employer—as the Supreme Court did with the Little Sisters of the Poor—merely to provide a written notification of its objection to HHS, rather than providing the self-certification to the plan administrator. (The government could then pursue alternative means of providing the objected-to drugs and devices to the employees.)
July 1, 2014
In the wake of yesterday’s Hobby Lobby ruling, there is, not surprisingly, quite a lot of speculation whether the so-called HHS mandate “accommodation” satisfies RFRA. With apologies for heading into the weeds, I offer some tentative observations on this matter:
1. On SCOTUSblog, Lyle Denniston states that it is “rather difficult” to read passages from Justice Alito’s majority opinion and Justice Kennedy’s concurrence “as anything other than a declaration” that the accommodation is “good enough.”
I disagree. Alito says explicitly, “We do not decide today whether an approach of this type [i.e., the accommodation] complies with RFRA for purposes of all religious claims.” He states only that the accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” As he puts it in a footnote, “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.” (Emphases added.)
In short, Alito clearly doesn’t reach the question whether the religious nonprofits currently subject to the accommodation may successfully challenge it under RFRA on the ground that facilitating insurance coverage by a third party (of morally objectionable drugs and devices) violates their religious beliefs.
Kennedy’s language, I will acknowledge, is murkier. Denniston focuses on a passage in which Kennedy, in discussing the accommodation, states that “RFRA requires the Government to use this less restrictive means.” But, in context, this seems like just an imprecise way of stating that the government loses in Hobby Lobby because a less restrictive means is available (whether or not that less restrictive means would itself satisfy RFRA). Further, given that no one briefed or argued in Hobby Lobby whether the accommodation would satisfy RFRA and given the serious legal questions about how the accommodation would actually work, I think that it would be extraordinary to read into Kennedy’s brief remarks any judgment that the accommodation is fine. (Denniston, I should note, nicely highlights some of the questions about how the accommodation would work and concludes that challengers to the accommodation “would have quite a strong argument” that the issue “actually remains unresolved.”)
2. As Denniston reports, yesterday evening the Supreme Court, over the recorded dissents of Justice Breyer and Justice Sotomayor, temporarily barred enforcement of the accommodation against Wheaton College, a religious nonprofit. If the justices in the Hobby Lobby majority had concluded that the accommodation satisfies RFRA, they would have had no reason to grant this temporary relief. Note also that the justices, in footnote 9 of the Hobby Lobby opinion, describe the relief from the accommodation that they previously provided the Little Sisters of the Poor in a way that is reasonably read, and has evidently already been read, to support extending that relief to other religious nonprofits who are challenging the accommodation.
To be sure, it’s possible that the justices in the majority have formed the tentative judgment that the accommodation is okay if the objecting employer isn’t required to complete the self-certification form that doubles as an authorization to its third-party administrator. But, as Denniston points out, government lawyers have argued that, without the employer’s authorization, the third-party administrator won’t have the legal authority to provide the objected-to coverage.
3. I emphasize again that the fact that the Court recognized the accommodation as a less restrictive means in no way implies that the Court must think that the accommodation itself would satisfy RFRA. Indeed, just three days before the Court’s ruling in Hobby Lobby, the Chief Justice illustrated the principle in a closely analogous context. As I discuss in point 3 of this post on the ruling on the buffer-zone law, the Chief Justice, in the course of discussing whether the law was narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives.
Under RFRA, the government has the duty to show that a burden on a person’s exercise of religion is the least restrictive means of furthering a compelling governmental interest. When the Court identifies a less restrictive means than the one the government has adopted, that suffices to show that the government hasn’t met its duty.
4. On the Corner, Matt Bowman, who has been litigating lots of challenges to the HHS mandate (including the accommodation), reminds us that the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. As Bowman points out, nothing in Hobby Lobbyoverrides circuit precedent on that issue. Given the clarity that Hobby Lobbyprovides on the threshold question of substantial burden, it ought to be easy for challengers to the accommodation to get past that threshold. Once they do so, those in the Seventh, Tenth, and D.C. Circuits will prevail on lack of a compelling governmental interest.